1.1 Company" shall mean Swift Send Courier International Pty Ltd and its successors and assigns.
1.2 Customer" shall mean the Customer or any person or persons acting on behalf of and with the authority of the Customer.
1.3 Guarantor" means that person (or persons), or entity who agrees herein to be liable for the debts of the Customer if a Limited Liability Customer on a principal debtor basis.
1.4 Goods" shall mean cargo together with any container, packaging, or pallet(s) supplied by the Customer to the Company for the purposes of movement from one place to another by way of the Company's Services.
1.5 Services" shall mean all services supplied by the Company to the Customer and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined supra).
1.6 Price" shall mean the cost of the Goods or Services as agreed between the Company and the Customer subject to clause 4 of this contract.
2.Acceptance
2.1 Any instructions received by the Company from the Customer for the supply of Services shall constitute acceptance of the terms and conditions contained herein.
2.2 Where more than one Customer has entered into this agreement, the Customers shall be jointly and severally liable for all payments of the Price.
2.3 Upon acceptance of these terms and conditions by the Customer the terms and conditions are irrevocable and can only be rescinded in accordance with these terms and conditions or with the written consent of the manager of the Company.
2.4 None of the Company's agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the manager of the Company in writing nor is the Company bound by any such unauthorised statements.
2.5 The Company is entitled to retain and be paid all brokerages commissions, allowances and other remuneration's retained by or paid to Ship Forwarding Agents (or Freight forwarders) and Insurance Brokers.
2.6 The use of a customer's own form shall in no way derogate from these conditions the whole of which shall, notwithstanding anything contained in any such form, constitute terms of the agreement so entered into. Any provisions in any such form which is contrary to any provisions of these Conditions shall to the extent of such inconsistency be in applicable.
3.Services
3.1 The Services shall be as described on the invoices, consignment Note, airway bills, manifests, sales order or any other forms as provided by the Company to the Customer.
4.Price And Payment
4.1 At the Company's sole discretion;(a)The Price shall be as indicated on invoices provided by the Company to the Customer in respect of Services supplied; or(b)The Price of the Services shall be the Company's quoted Price that shall be binding upon the Company provided that the Customer shall accept the Company's quote within twenty-eight (28) days.
4.2 The Company may by giving notice to the Customer increase the Price of the Goods to reflect any increase in the cost to the Company beyond the reasonable control of the Company. (including, without limitation, foreign exchange fluctuations, or increases in taxes or customs duties or insurance premiums or warehousing costs).
4.3 Time for payment for the Services shall be of the essence and will be stated on the invoice, consignment Note, airway bills, manifests or any other order forms. If no time is stated then payment shall be due at the date of this agreement
4.4 At the Company's sole discretion, for certain approved Customers payment will be due either seven (7) or thirty (30) days following the date of the invoice.
4.5 Payment will be made by cash, or by cheque, or by bank cheque, or by direct credit, or by any other method as agreed to between the Customer and the Company.
4.6 The Price shall be increased by the amount of any GST and other taxes and duties that may be applicable, except to the extent that such taxes are expressly included in any quotation given by the Company.
5.Delivery Of Goods
5.1 The Company's charges including freight have been calculated on the basis on particulars furnished by, or on behalf on the customer. The Company may at any time open any container or any other package or unit in order to re-weigh, re-measure or re-value the contents and if the particulars furnished by or on behalf of the customer are incorrect, it is agreed that a sum equal to either five times the difference between the correct freight and the freight charged, or double the correct freight less the freight charged, whichever sum is smaller shall be payable as liquidated damages to the Company.
5.2 Except where the Company is instructed in writing to pack the Goods the customer warrants that all Goods have been properly and sufficiently packed and /or prepared.
5.3 Delivery of the Goods shall be made to the Customer's address. The Customer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery, or delivery of the Goods shall be made to the Customer at the Company's address.
5.4 Where there is no agreement that the Company shall send the Goods to the Customer, delivery to a carrier at limited carrier's risk at the expense of the Customer is deemed to be delivery to the Customer.
5.5 No insurance will be effected except upon express instructions as to the risks to be insured against and the value or values to be declared in writing by the customer and all insurances effected by the Company subject to the usual exceptions and conditions or the policies of the insurance Company or underwriters accepting the risk. The Company shall not be under any obligation to effect separate insurance on each consignment but may declare it on any open or general policy. Should the insurers dispute their liability for any reason the insured shall have recourse against the insurers only and the Company shall not be under any responsibility or liability in relation thereto, notwithstanding that the premium upon the policy may not be at the same rate as that charged by the Company or paid to the Company by its customer.
5.6 The Company shall not be liable:
(a)For loss of or damage to Goods unless such loss or damage occurs whilst the Goods are in the actual custody of the Company and under its actual control and unless such loss or damage is due to the wilful neglect or default of the Company or its own servants;
(b)For any delay in delivery, forwarding or transit or failure to deliver Goods, any deterioration, contamination, evaporation or any consequential loss or loss of market however caused;
(c)For failure to follow instructions given to it by or on behalf of the customer whether or not such failure is willful;
(d)For any damage or expense arising from or in any way connected with marks, numbers, brands, contents, quality or description of any Goods;
(e)For loss or damage resulting from fire, water, explosion, or theft whether caused by negligence of the Company's servants or otherwise.
5.7 In the case of carriage by sea, the value will not be declared or inserted in the Bill of Lading for the purpose of extending the Shipowners' liability under Article IV Rule 5(a) of Schedule 1 of the Carriage of Goods by Sea Act 1991 except upon express instructions given in writing by the customer.
5.8 In the case of carriage by Air, no optional declaration of value to increase the Air Carrier's liability under the Carriage by Civil Aviation (Carrier's Liability) Act 1959, Article 22(2) of Schedule 1 as amended by Schedule 2 will be made except upon express instructions given in writing to the customer.
5.9 In all other cases where there is a choice of tariff rates according to the extent of the liability assumed by carriers warehousemen or others no declaration of value (where optional) will be made for the purposes of extending liability and Goods will be forwarded or dealt with at owners risk or other minimum charges unless express instructions in writing to the contrary are given by the customer.
5.10 Instructions to collect payment on delivery (COD) in cash or otherwise are accepted by the Company upon the condition that the Company in the matter of such collection will be liable for the exercise of reasonable diligence and care only.
5.11 Perishable Goods, which are not taken up immediately upon arrival or which are insufficiently addressed or marked or otherwise not identifiable may be sold or otherwise disposed of without any notice to the customer and payments or tender of the net proceeds of any sale after deduction of charges shall be equivalent to delivery. All charges and expenses arising in connection with the sale or disposal of the Goods shall be paid by the customer.
5.12 Non-perishable Goods which cannot be delivered either because they are insufficiently or incorrectly addressed or because they are not collected or accepted by the consignee may be sold or returned at the Company's option at any time after the expiration of 21 days from a notice in writing sent to the address which the customer gave to the Company on delivery of the Goods. All charges and expenses arising in connection with the sale or return of the Goods shall be paid by the customer. A communication from any agent or correspondent of the Company to the effect that the Goods cannot be delivered for any reason shall be conclusive evidence of that fact.
5.13 Except under special arrangements previously made in writing the company will not accept or deal with any noxious, dangerous, hazardous or inflammable or explosive Goods or any Goods likely to cause damage. Any person delivering such Goods to the Company or causing the Company to handle or deal with any such Goods (except under special arrangements previously made in writing) shall be liable for all loss or damage caused thereby and shall indemnify the Company against all penalties claims damages costs and expenses arising in connection therewith and the Goods may be destroyed or otherwise dealt with at the sole discretion of the Company or any other person in whose custody they may be at the relevant time such Goods are accepted under arrangements previously made in writing they may nevertheless be so destroyed or otherwise dealt with if they become dangerous to other Goods or property. The expression "Goods likely to cause damage" includes Goods likely to harbour or encourage vermin or other pests and all such Goods as fall within the definition of hazardous and dangerous Goods in the legislation governing cartage by road or rail in the States and Territories.
5.14 Subject to express instructions in writing given by the customer and by the Company, the Company reserves to itself complete freedom of choice of means route and procedure to be followed in the handling and transportation of Goods.
5.15 If in the Company's opinion it is necessary or desirable in the customer's interests to depart from any express instructions, the Company shall be at liberty to do so.
5.16 Except under special arrangements previously made in writing the Company will not accept bullion, coins, precious stones, jewellery, valuables, antiques, pictures, livestock or plants and the Company will not accept any liability what ever for any such Goods except under special arrangements previously made in writing.
5.17 Pending forwarding and delivery Goods may be warehoused or otherwise held at any place or places at the sole discretion of the Company at the customer's or owner's risk and expense.
5.18 The Goods shall be deemed to have been delivered as described unless notice of loss or of damage to the Goods indicating the general nature of such loss or damage shall have been given in writing to the Company or to its representative at the place of delivery before or at the time of removal of the Goods by a representative of the person entitled to delivery thereof or if the loss or damage be not apparent within three (3) consecutive days thereafter.
5.19 The Customer shall take delivery of the Goods tendered notwithstanding that the quantity so delivered shall be either greater or less than the quantity purchased provided that;
(a)such discrepancy in quantity shall not exceed 5%, and
(b)the Price shall be adjusted pro rata to the discrepancy.
6.Disclaimer
6.1 By entering into any agreement to which these conditions apply, the customer on his own behalf and as agent of the owner, sender and consignee agrees and further offers to limit the liability of all servants, employees and agents of the Company in respect to the Goods and subject to the agreement to the extend that each such servant, employee and agent shall be protected by and entitled to the full benefit of all provisions in these conditions excluding or restricting tortuous liability of any kind;
(a)The offer hereinbefore referred to shall be accepted by the act of each such servant employee or agent in performing any function in relation to or affecting the Goods the subject of the agreement;
(b)For the purposes of the foregoing provisions of this clause the Company is and shall be deemed to be acting as agent on behalf of the trustee for the benefit of all persons who are or become its servants, employees or agents from time to time and all such persons shall to this extent be and be deemed to be parties to the agreement concerned.
6.2 In addition to and without prejudice to the foregoing Conditions the customer undertakes that it shall in any event indemnify the Company against all liabilities suffered or incurred by the Company arising directly or indirectly from or in connection with the customer's instructions or their implementation or the Goods, and in particular the customer shall indemnify the Company in respect of any liability it may be under to any servant, agent or subcontractor, or any haulier, carrier, warehouseman, or other person whatsoever at any time involved with the Goods arising out of any claim made directly or indirectly against any such party by the customer or by any sender, consignee or owner of the Goods or by any person interested in the Goods or by any other person whatsoever.
7.Liability
7.1 The Company shall be discharged of all liability unless suit is brought in the proper forum and written notice thereof received by the Company within six months after delivery of the Goods or the date when the Goods should have been delivered. In the event that the said time period shall be found contrary to any convention or law compulsorily applicable the period prescribed by such convention or law shall then apply but in that circumstances only.
8.The Commonwealth Trade Practices Act 1974 and Fair Trading Acts
8.1 Nothing in this agreement is intended to have the affect of contracting out of any applicable provisions of the Fair Trading Acts in each of the States and Territories, except to the extent permitted by those Acts where applicable.
8.2 Liability of the Company arising out of any one incident whether or not there has been any declaration of value of the Goods, for breach of warranty implied into these terms and conditions by the Trade Practices Act 1974 or howsoever arising, is limited to any of the following as determined by the Company.
(a) The supplying of the services again; or
(b) The payment of the cost of having the services supplied again; or
(c) The lesser of AUD$200.00 for loss of or damage to any such Goods, packages or units or AUD$2.00 per kilogram or the gross weight for loss of or damage to any such Goods, packages or units or $20.00 per package or unit lost or damaged. For the purpose of this clause the word "package" shall include the contents even if particulars have been provided or incorporated in any document of the Company.
9.Default & Consequences Of Default
9.1 Interest on overdue invoices shall accrue from the date when payment becomes due daily until the date of payment at a rate of 2.5% per calendar month and shall accrue at such a rate after as well as before any judgement.
9.2 If the Customer defaults in payment of any invoice when due, the Customer shall indemnify the Company from and against all the Company's costs and disbursements including on a solicitor and own client basis and in addition all of EC Credit Control Pty Limited's costs of collection.
9.3 Without prejudice to any other remedies the Company may have, if at any time the Customer is in breach of any obligation (including those relating to payment), the Company may suspend or terminate the supply of Services to the Customer and any of its other obligations under the terms and conditions. The Company will not be liable to the Customer for any loss or damage the Customer suffers because the Company exercised its rights under this clause.
9.4 All unpaid charges shall be paid in full and without any offset, counter claim or deduction, in the currency of the place of receipt of the Goods or at the Company's option, in the currency of the place of delivery at the TT selling rate in affect on the day of payment. If the date determined above falls on a day which banks are closed for business, the rate ruling on the next succeeding business day shall govern.
9.5 In the event that:
(a) any money payable to the Company becomes overdue, or in the Company's opinion the Customer will be unable to meet its payments as they fall due, Or;
(b) the Customer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors, Or;
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer, then without prejudice to the Customer's other remedies at law;
(i)the Company shall be entitled to cancel all or any part of any order of the Customer which remains unperformed in addition to and without prejudice to any other remedies; and
(ii)all amounts owing to the Company shall, whether or not due for payment, immediately become payable.
10.Security And Charge
10.1 Notwithstanding anything to the contrary contained herein or any other rights which the Company may have howsoever:
(a)Where the Customer and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Customer and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to the Company or the Company's nominee to secure all amounts and other monetary obligations payable under the terms and conditions. The Customer and/or the Guarantor acknowledge and agree that the Company (or the Company's nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be released once all payments and other monetary obligations payable hereunder have been met.
(b)Should the Company elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Customer and/or Guarantor shall indemnify the Company from and against all the Company's costs and disbursements including legal costs on a solicitor and own client basis.
(c)To give effect to the provisions of clause [10.1 (a) and (b)] inclusive hereof the Customer and/or the Guarantor (if any) do hereby irrevocably nominate constitute and appoint the Company or the Company's nominee, namely EC Credit Control Pty Limited as the Customer's and/or Guarantor's true and lawful attorney to execute mortgages and charges (whether registerable or not) including such other terms and conditions as the Company and/or EC Credit Control Pty Limited shall think fit in his/her/its/their absolute discretion against the joint and/or several interest of the Customer and/or the Guarantor in any land, realty or asset in favour of the Company and in the Customer's and/or Guarantor's name as may be necessary to secure the said Customer's and/or Guarantor's obligations and indebtedness to the Company and further to do and perform all necessary and other acts including instituting any necessary legal proceedings, and further to execute all or any documents in the Company's absolute discretion which may be necessary or advantageous to give effect to the provisions of this clause.
11.Privacy Act 1988
11.1 The Customer and/or the Guarantor/s agree for the Company to obtain from a credit reporting agency a credit report containing personal credit information about the Customer and Guarantor/s in relation to credit provided by the Company.
11.2 The Customer and/or the Guarantor/s agree that the Company may exchange information about Customer and Guarantor/s with those credit providers named in the Application for Credit account or named in a consumer credit report issued by a reporting agency for the following purposes:
(a) To assess an application by Customer;
(b) To notify other credit providers of a default by the Customer;
(c) To exchange information with other credit providers as to the status of this credit account, where the Customer is in default with other credit providers; and
(d)To assess the credit worthiness of Customer and/or Guarantor/s.
11.3 The Customer consents to the Company being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
11.4 The Customer agrees that Personal Data provided may be used and retained by the Company for the following purposes and for other purposes as shall be agreed between the Customer and Company or required by law from time to time:
(a) provision of Goods & Services;
(b) marketing of Goods and or Services by the Company, its agents or distributors in relation to the Goods and Services;
(c) analysing, verifying and/or checking the Customer's credit, payment and/or status in relation to the provision of Goods or Services;
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by Customer; and(e)enabling the daily operation of Customer's account and/or the collection of amounts outstanding in the Customer's account in relation to the Goods and Services.
11.5 The Company may give, information about the Customer to a credit reporting agency for the following purposes:
(a)to obtain a consumer credit report about the Customer; and or
(b)allow the credit reporting agency to create or maintain a credit information file containing information about the Customer.
12.Unpaid Company's rights to dispose of Goods
12.1 The Company shall have a lien on the Goods and any documents relating to the Goods and/or any other Goods or cargo of the Customer in the possession or control of the Company and any documents relating to those other Goods or cargo for all sums payable by the Customer to the Company for that purpose and shall have the right to sell such Goods or cargo by public auction or private treaty without notice to the Customer. The Company shall be entitled to retain the sums due to it, in addition to the charges incurred in detention and sale of such Goods or cargo, from the proceeds of sale and shall render any surplus to the entitled person.
13.General
13.1 If any provision of these terms and conditions shall be invalid, void or illegal or unenforceable the validity existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
13.2 All Goods supplied by the Company are subject to the laws and the Company takes no responsibility for changes in the law which affect the Goods supplied.
13.3 The Customer shall not set off against the Price amounts due from the Company.
13.4 The Company reserves the right to review these terms and conditions at any time and from time to time. If, following any such review, there is to be any change in such terms and conditions, that change will take effect from the date on which the Company notifies the Customer of such change.
13.5 The Customer authorizes the Company and any Subcontractor to subcontract on any terms the whole or part of the provision of the Services.
13.6 All the rights, immunities and exemptions from liability in these terms and conditions shall continue to have their full force and affect in all circumstance and not withstanding any breach of this contract or of any of these terms and conditions by the Company or any other person entitled to the benefit or such provisions and irrespective of whether such may constitute a fundamental breach of contract or a breach of a fundamental term.
13.7 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.
